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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 7 - Evidence - February 16, 2012
OTTAWA, Thursday, February 16, 2012
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:31 a.m. for the review of statutory instruments.
Senator Bob Runciman and Ms. Françoise Boivin (Joint Chairs) in the chair.
The Joint Chair (Senator Runciman): We will get right into the agenda. Welcome to the new members to the committee, the new faces around the table. Following completion of the agenda, counsel will give us a précis of the tour that they took during the break. If you recall, those of you who were on the committee, some of the more reluctant groups within the government in terms of responding in a timely way to some of our issues were visited during the break period. Counsel will bring us up to date of what transpired during that period of time during those visits.
I just wanted to add a quick comment.
The Joint Chair (Ms. Françoise Boivin): I would like to greet Vincent Brassard, a young cadet from Gatineau who will be shadowing me all day. He will probably find our discussions to be quite onerous and intensely legalistic. Nevertheless, this is a great experience for him.
Welcome to Parliament Hill, Vincent. Ours is a joint committee, made up of senators and members of Parliament.
SI/2005-2 — ORDER GIVING NOTICE OF DECISIONS NOT TO ADD CERTAIN SPECIES TO THE LIST OF ENDANGERED SPECIES
(For text of documents, see Appendix A, p. 7A:1.)
Peter Bernhardt, General Counsel to the Committee: As some members may recall, this file was before the committee just before Christmas. For the benefit of the new members, by way of background, a 2008 report of the joint committee identified what seemed to it to be a potential flaw in the Species At Risk Act. Under that act, when the Committee on the Status of Endangered Wildlife in Canada completes an assessment on a particular species, it provides the minister with a copy. Within nine months after receiving an assessment, the Governor-in-Council has to review it. The Governor-in-Council then decides whether to add it to the list, not add it to the list, or refer the matter back to the committee. If nothing is done within nine months, the minister is required to amend the list in accordance with the recommendation.
Although the act talks about a nine-month period for taking action based on when the Governor-in-Council receives the assessment, there is no mechanism in the act or no time period within which the minister — who is actually the person who is giving the assessment — has to pass it along to the Governor-in-Council. This seemed rather odd to the committee when dealing with the regulations carrying all this out, in the sense that if it was left completely open- ended whether or not to ever to give the assessment to the Governor-in-Council, the idea that something be done within a certain period of time could be defeated.
The act itself was subject to a five-year review. That was commenced in the last Parliament by the House of Commons Standing Committee on the Environment. The committee's report was drawn to the attention of that committee. Apparently, the same issue was identified by a number of witnesses who appeared before that committee as well.
While the environment committee was at the stage of considering a draft report in the last Parliament, the report was never tabled prior to dissolution. We have been given to understand that the environment committee does not intend to take the issue up again.
That being the case, back in December members here decided that contact should be made with Environment Canada to ask if they were contemplating any amendments to the act — as a result of things that had come up in the course of that review that was being done by environment committee — even though the report had never been tabled. Not surprisingly, the reply from Environment Canada is that as far as it is concerned, the act is working as it was intended, and that the decision as to when to forward an assessment to the Governor-in-Council was left up to the minister intentionally. They also add that proposals to improve the legislation are always being considered.
I am not sure that leaves this committee very many places to go on the file. It has noted a potential issue with the act. Other people have noted the same potential issue. In terms of regulations, there is nothing here for the committee to pursue. It is accepted that read literally, the regulations made under the act have been made through the proper procedure. The question this morning is whether members see any purpose in keeping this file open.
Mr. Wilks: I believe the committee has done all it can do. We have put them in the right direction and for whatever reason they have chosen not to act on it. I would strongly suggest we close this file.
The Joint Chair (Senator Runciman): Any other discussion on this? We are all in agreement?
Hon. Members: Agreed.
SOR/89-93 — ONTARIO FISHERY REGULATIONS, 1989
(For text of documents, see Appendix B, p. 7B:1.)
The Joint Chair (Senator Runciman): The most recent letter was 2009, asking what Fisheries and Oceans Canada intended to do to clarify the regulations. That went unanswered despite two subsequent reminders until just last month, when Minister Ashfield responded to say that modernizing fisheries management is a key priority. He is noting the committee's concern and will take them into consideration as the ministry develops options going forward.
Is there anything else to add to that, counsel?
Mr. Bernhardt: For new members, I should underline that this is an issue of some significance for the committee. In fact, it is the lead file on an issue that the committee has seen in a number of regulations. The committee has twice proposed disallowance of the section in question. In both cases, the report of the committee was referred back to it by the House of Commons for the reason that the government introduced legislation to solve the problem.
Unfortunately, both times the bill died on the Order Paper, so this particular issue is still there. In fact, going back into the 1990s, I believe there have been six bills introduced that would have resolved this issue. Three were one-section bills, simply to deal with a particular point. Three of the others were complete rewrites of the Fisheries Act. None of these bills have ever passed. It is not for lack of trying to come up with a solution that the file is still here this morning.
As far as next steps, perhaps ask the minister if he expects legislation to be tabled this session?
The Joint Chair (Senator Runciman): The letter that was received just last month indicated he is developing options, but there was no indication with respect to legislation.
Mr. Albas: I certainly appreciate this is an issue the committee has grappled with. It can be frustrating to see when you continue to go back over and over. I think that has been part of the spate of minority governments that has led to this. Now that there is a majority government in place, some more timelines probably can be settled. We have received a fair response from the new minister. I think we write back to Minister Ashfield and request a timeline, which I think is reasonable and fair. I think to settle for anything else at this point, based on what counsel has impressed upon me, would be counterproductive.
Senator Moore: Thank you. The minister may be reluctant to introduce a whole new Fisheries Act and open it all up. What about proceeding by way of the miscellaneous statute process? It is just one section, is it not, counsel?
We have had a number of pieces of legislation here that could be fixed using that process. Could we maybe put that to the minister and get this moving forward?
Mr. Bernhardt: That suggestion was made in the 2009 letter. For whatever reason, it was not responded to.
Senator Moore: Can you sit down with his adviser and point out the wisdom of how expeditious it could be to solve everyone's problem? If there is a will to get it done, that is an easy route to follow.
Mr. Bernhardt: We can certainly make the suggestion again.
Senator Harb: What troubles me is the fact that he is not even agreeing with the committee. He is basically saying, "I will take them into consideration." I wonder whether it could be clarified whether his position is in agreement with the committee; that would be the first step. As well, I would press him on the time.
Mr. Albas: Senator Moore's suggestion seems reasonable, but considering that we are already at a ministerial level, whereby we have received a response from Minister Ashfield, I think we could simply ask for a clarification. It seems through his own comments that he is very open to the idea of modernizing the management of Canada's fisheries and working with the committee. This is where we simply ask for a timeline.
The Joint Chair (Ms. Boivin): I agree with Mr. Albas. It may be a translation issue, but in French, it is clear that the minister is going to take our suggestions into account. I am not sure whether the English version says something different, but the French version states that he will take our recommendations into consideration in the course of his work.
The Joint Chair (Senator Runciman): Is everyone okay with that approach?
Senator Moore: Where do we end up?
The Joint Chair (Senator Runciman): As I understand it, we will look for a timeline, with respect, and we can ask what process the minister is looking at, which would incorporate the suggestion that you have raised.
Senator Moore: I would like it if we could ask him that at the same time.
The Joint Chair (Senator Runciman): Yes.
Senator Moore: It might give him some relief. The whole Fisheries Act is not an easy thing; it is akin to tackling the Indian Act. This is onerous. Maybe he could see his way clear to following that process to move it along.
SOR/89-127 — FOOD AND DRUG REGULATIONS, AMENDMENT
(For text of document, see Appendix C, p. 7C:1.)
Mr. Bernhardt: The purpose of this amendment was to facilitate the marketing of Caribbean rum in Canada by allowing rum imported in bulk and bottled in Canada to be sold as Caribbean rum. If not for this amendment, these sales would be contrary to the Food and Drug Regulations.
The joint committee objected to the validity of the amendment on the ground that the purpose for which it was made fell outside the scope of the Food and Drugs Act. The purpose of the Food and Drugs Act, in a nutshell, is consumer protection. The purpose of this amendment was to implement an international trade agreement: that fell outside the scope of the FDA.
There is a document in the materials this morning that summarizes the rather lengthy history of this file going back to 1989. The Canadian Food Inspection Agency promised to revoke the section in question, which is section B.02.034 of the Food and Drug Regulations, and initially promised that would take place by the end of 2001. As long ago as 2003, the minister was informed by this committee that it was preparing a draft disallowance report for possible presentation, given the delay in carrying out this undertaking. That report never proceeded. An election intervened and then, in the new Parliament, the Spirit Drinks Trade Act was introduced. It came into force in June 2006 and provides the government with the means to fulfill this international agreement.
However, section B.02.034 of the Food and Drugs Regulations has yet to be revoked. In its letter of January 10, the CFIA advised that the revocation of this provision has raised, in its words, policy issues that require a more substantial analysis. As a note prepared for members observes, this particular amendment had been under study for four years. It had been approved by the Department of Justice, and, in fact, the revocation of this provision had been promised for over a decade. It is difficult to see what the significant policy issues might have been that arose this late in the day.
First, if authority for the provision is not there, as a matter of law it is unenforceable in any event. Second, the enactment of the Spirit Drinks Trade Act would seem to render the section of the Food and Drug Regulations redundant. There is also some discussion in the note of the statement that because of these policy issues and the analysis, the amendment had to be taken out of the miscellaneous package. The committee had been promised that the package would contain the amendment. As the note points out, simply because something requires substantive analysis, if that amendment was requested by the committee, it does not lead to the conclusion that it is not possible to put it in a miscellaneous package.
In summary, action to resolve the committee's concern was promised some 20 years ago. It would appear that since 2006, the provision that needs to be revoked has served no purpose. At minimum, the CFIA should be asked to explain the nature of these policy issues it has encountered suddenly and to provide a firm timeline for revocation. Members may wish to consider whether they want to advise the minister that the committee intends to consider a draft report proposing disallowance of this provision. I should add that giving notice of disallowance does not commit the committee to following through with the report, but it does start the clock running, puts the possibility on the table and might spur some action on this file.
Senator Moore: What counsel is recommending is appropriate, chair. This is a time issue. For them to now raise something called "policy issues" after all of this time is just another stall. We should send that letter.
Mr. Albas: I agree that a letter is appropriate, but I do not necessarily believe that we need to go down the path of disallowance. We would hope to be able to resolve this by counsel dealing with their departmental people. That has not been successful, so bringing it to the political level with the minister is completely appropriate. I do not think that we need a sledgehammer of disallowance at this time, but this committee can always consider that. We could look for results by changing our actions, in this case by writing a letter to the minister, who would be advised that the committee has the authority to give notice of disallowance. I am sure that taking this to the minister will give the file a different level of attention so that we can resolve this promptly.
The Joint Chair (Senator Runciman): How do members feel about a letter to the minister expressing our concern and indicating that we have the ability to disallow, and that we are reluctant to go down that path and hope the minister can expedite a resolution?
Mr. Albas: I would say that most likely the minister will be advised of that, and I do not think we need to wave the hammer. We could simply say that this is a long-standing issue; the 2006 Spirit Drinks Trade Act covers this; there is no reason that we can foresee; and ask him to look into it. That is more than fair. Again, if we do not receive a timely response, we can look at other measures.
Senator Moore: I am not happy with that, if that is the consensus of the committee. The minister should be made aware that this process could happen, although we are not advocating disallowance. I do not know how much we will be able to get them to move on this after 20 years.
The Joint Chair (Ms. Boivin): As a lawyer, I would say something to the effect that we prefer to talk to him first. He will read between the lines that we are respectful. There is no problem with mentioning in the letter, in my opinion: "Before we even consider doing this, we prefer to address the issue with you." That would satisfy Senator Moore and would follow along your lines.
Mr. Albas: I would say that this is a reasonable suggestion, but we have a minister who probably is not aware of the issue.
We are probably going to be working on other files, and if we come too heavy-handed I think that will set forward a negative connotation from correspondence from our committee. I would think if we bring it up and if we get prompt action, it goes a long way with working together.
The Joint Chair (Ms. Boivin): I do think we are all saying the same thing. There is nothing wrong in saying we did not want to proceed with this; we prefer to address the issue to you. It looks different, it looks perfect, and it says what it says.
SOR/91-365 — PARI-MUTUAL BETTING SUPERVISION REGULATIONS
(For text of documents, see Appendix D, p. 7D:1.)
The Joint Chair (Senator Runciman): This matter has been before the committee since 2007. The department has amended the regulations, but it does not see the need for an amendment to the Criminal Code. They say that the section of the regulations that per pertains to that particular area has been deleted. It makes the amendment to the code unnecessary.
Jacques Rousseau (Counsel): After acknowledging the discrepancy between the Criminal Code provisions in question, the department is now stating that the regulatory provision adopted under the Criminal Code has been repealed and, therefore, it is no longer necessary to amend the Criminal Code.
Committee counsel is of the opinion that the department's response is not sufficient. A discrepancy still exists between both versions of the Criminal Code, with the French version being more restrictive. Given that the department has acknowledged the problem, it should be rectified. If the committee is in agreement, counsel will send the department a letter to request that a new measure be introduced in Parliament.
I would point out that a proposed amendment had previously been introduced in Parliament, but unfortunately it died on the Order Paper. In my view, a proposed amendment is warranted and should once again be brought before Parliament.
Mr. Wilks: Respecting both official languages of Canada, we have to get it right, so let us write back and tell them to get it right.
SOR/84-432 — LICENSING AND ARBITRATION REGULATIONS
(For text of documents, see Appendix E, p. 7E:1.)
The Joint Chair (Senator Runciman): This is going back to 1988, when 35 concerns were first raised with the Department of Agriculture; a lot of back and forth over the years. The department has made some changes and following the creation of the Canadian Food Inspection Agency, progress has been slow. I think counsel can emphasize that for us. As of last month, the CFIA was suggesting that outstanding issues would be considered as part of an overall modernization of regulations.
Mr. Bernhardt: Exactly, Mr. Chair. Again, there is a detailed chronology of the lengthy history of this file. Leaving out the ancient history and starting up in 2002, from 2002 to 2006, the committee was told that the remaining amendments to be made on this file would be part of a miscellaneous package that was under development. In 2006, that package came out. It turned out that some of the amendments were there and some were not.
The agency then indicated that the remainder would be in a separate package that was in the works again, and that there was also a comprehensive review of the regulations under way. This was the second comprehensive review that had been undertaken. The first one was apparently abandoned back in the 1990s.
The January letter from the agency reports that these matters are now being considered as part of the upcoming regulatory modernization initiative. This will begin with a bill to replace and consolidate various agriculture statutes. The review of these regulations is to be completed over the next three years. As the summary observes, this will be the third attempt at a comprehensive review of these regulations, which contain only 23 sections.
Given the time that has already passed and the agency's track record, it is difficult to characterize the committee waiting for at least three more years as an acceptable proposal.
I should add, in light of the meetings that took place over the holidays, the latest letters on this file and the following ones had been sent by the agency but not yet received by our office when we met with people from the CFIA back in January. In the course of that meeting, they did make reference to these broad reviews that would form part of the regulatory modernization initiative. At that time, I suggested the committee was perhaps not likely to just put aside a number of files for a period of years, and in anticipating the committee's reaction, that some ongoing attempt to make these outstanding amendments — particularly ones that have been outstanding for well over a decade — would be desired. Frankly, I am not sure how seriously that comment was taken at that time.
The Joint Chair (Senator Runciman): What are you proposing we do? What are the options?
Mr. Bernhardt: The committee can choose to put the files aside and wait three years or five years or however long it takes. The second option would be to write back to the agency advising that the committee did not find that proposal acceptable and would wish to see these things proceed in a more expeditious manner, separate and apart from this modernization initiative. That letter could go to the agency or to the minister.
In light of the series of files that follow, I suppose members could also consider whether they wish to hear from witnesses from the agency.
The Joint Chair (Senator Runciman): As you say, we have a laundry list here with the same agency and years of delay. I was going to suggest we consider if it might be worth having them appear before the committee at some point in the not-too-distant future to talk about these ongoing challenges with addressing the concerns of the committee.
Mr. Albas: First, I want to commend counsel for meeting with them. I think that kind of outreach does go a long way when you meet face to face. From what I understand there have been shifts in personnel. To be able to establish those relationships to create a positive working relationship is very positive and should be encouraged. Given there are a number of concerns brought in here, I do not think simply waiting three years is reasonable in this case. We have an opportunity to deal with some of these issues. I do know from listening to many members in the last meeting, there was a desire to see some action. I would simply put forward that we raise this to the political level of the minister, outline our concerns that the three years for a potential review is not sufficient, but that we look forward to resolving this with his assistance.
The Joint Chair (Senator Runciman): Are there any additional comments?
Senator Moore: I think that sounds good, but I would also like to have these officials come in. It seems to move people when we do that.
Mr. Albas: I do believe you have a couple different options. It seems that dealing with the bureaucratic level has not yielded the results we would like. I think we either continue to go down that road, or we take it up a notch with respect to asking the minister to take a look into it himself. I think by doing that, it shows the committee is looking for the change that we desire. I think bringing people in to discuss the issue will take valuable time away from other files. By bringing it to the minister's attention, I think that would allow us to get results quicker. Based on the conversation we had at the last meeting, I believe that was what people were looking for.
The Joint Chair (Senator Runciman): We can live with that. That is the approach we will take, then.
Counsel, do you want to deal with the remaining CFIA items?
SOR/96-363 — LICENSING AND ARBITRATION REGULATIONS, AMENDMENT
(For text of documents, see Appendix F, p. 7F:1.)
SOR/2000-416 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
SOR/2003-409 — REGULATIONS AMENDING THE HEALTH OF ANIMALS REGULATIONS
(For text of documents, see Appendix G, p. 7G:1.)
SOR/2003-6 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY
(For text of documents, see Appendix H, p. 7H:1.)
Mr. Bernhardt: The situation is basically similar for each file. We have issues that were raised some years ago. Agreements to make amendments were obtained. The committee was told that these changes were in miscellaneous packages that either never saw the light of day or, when the packages did come out, those amendments were not there.
The Joint Chair (Senator Runciman): Do we incorporate all three of these into the same letter to the minister?
Mr. Bernhardt: It may be useful to send with that letter the summaries of the files in the materials; they speak for themselves.
Mr. Albas: Would SOR/2003-409 be included with the last item?
Mr. Bernhardt: As well as SOR/2003-6.
Mr. Albas: I am looking at my fellow committee members.
Mr. Wilks: As well as SOR/96-363.
Mr. Bernhardt: On the second page of the agenda the SORs are: 84-432, 96-363, 2000-416, 2003-409 and 2003-6.
Mr. Pacetti: How much time will we give the minister to respond, two or three years? What are the contents of the letter? The last two letters that we have received from ministers indicated that they are working on it and will let us know. That is how seriously they take it.
The Joint Chair (Senator Runciman): Let us give it a chance and see if we do not receive a satisfactory response in a timely way.
Senator Moore: Let us try for a response in 30 days. After all these years, that is not unreasonable to ask.
Mr. Albas: I appreciate where members are coming from but, to be fair, these are first-time complicated issues, or we would not have been wrestling with them for so many years. Perhaps we want to give the minister a reasonable chance to take a look at the issues before we attach a timeline. We are not going down the path of seeking answers bureaucratically; we are going politically. Given the fact that we have four or five current files, it is unreasonable to put a timeline on a response because some of them are outstanding issues. We have raised the concern with the minister. I am a little leery of having all these files go to the political level but, by the same token, I can see that the committee wants action. Adding a timeline to so many complicated issues is unreasonable.
The Joint Chair (Ms. Boivin): I found that with our letter to the Minister of Fisheries, we received an answer pretty quickly. I believe that was the first time the Joint Chair and I signed that kind of letter to a minister. I have no personal reason at this time to think that the ministers are stalling us. If we feel that we do not receive an answer within a reasonable time, we will bring the file back and decide whether to do something else. Believe me; if I feel I am not answered, I will react.
Mr. Pacetti: A reasonable time is 30 days. If you want to put 45 days, that is fine.
The Joint Chair (Senator Runciman): There is no consensus on putting a strict timeline, but we can deal with it if we have not received a response within a reasonable time.
The Joint Chair (Ms. Boivin): We will keep the reasonable time in our file.
SOR/2002-22 — CANADIAN CHICKEN LICENSING REGULATIONS
SOR/2004-2 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS
SOR/2007-249 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS
SOR/2011-244 — REGULATIONS AMENDING THE CANADIAN CHICKEN LICENSING REGULATIONS
(For text of documents, see Appendix I, p. 7I:1.)
Mr. Rousseau: The Canadian Chicken Licensing Regulations were made by the organization known as Chicken Farmers of Canada (CFC), in accordance with the authorities subdelegated under the Farm Products Agencies Act and the Chicken Farmers of Canada Proclamation. As is the case for many other agencies whose regulatory authorities are derived from this source, the designated instruments officer with whom correspondence is exchanged is the Farm Products Council of Canada (FPCC). The FPCC undertook to contact CFC in order to provide a response to the joint committee.
The note on this file begins with a summary of events further to the correspondence and discussions between committee counsel, the FCC and CFC. The correspondence in question dates back to December 5, 2008, at which time the committee raised 13 points. On August 6, 2009, CFC legal counsel responded directly.
I would point out that, as with all of the correspondence received regarding this file, this response pertained not only to the Canadian Chicken Licensing Regulations, but also to all other regulations made by CFC about which committee counsel had written the FPCC.
For our purposes today, however, only the part of the file pertaining to the Canadian Chicken Licensing Regulations is relevant.
Further to this letter, CFC requested a meeting with committee counsel. A meeting attended by an FPCC representative took place on December 8, 2009. It provided an opportunity for a discussion of all the files, but not all the different points of view were resolved. CFC undertook to review the files in light of what was discussed during the meeting.
As indicated in the note, the FPCC did not have much success in its attempt to contact CFC to keep the committee apprised of any developments.
Finally, in November 2011, CFC adopted SOR/2001-244, correcting the issues raised in points 2, 4, 5, 6, 7 in part, 10, 11 in part, 12 and 13 of the letter sent by the committee on December 5, 2008.
At that time, a new drafting problem came to light; it is described on page 2 of the note. The note also details the points that were not addressed through amendments.
Point 1 addresses the repetition in the regulations of six definitions that are already set out in the proclamation, under which the regulations were made. From a legal perspective, this repetition is pointless. Parliament went to the trouble of stipulating a rule to that effect in the Interpretation Act.
The committee identified the exact same problem when it scrutinized other regulations made by CFC and suggested that the definitions in question be removed. That suggestion applies to this case as well.
Point 3 pertains to the definition of "producer-processor." As defined in the regulations, a producer-processor is a person who processes and markets chicken. According to the definition of "marketing," processing is a marketing activity. Thus, a person who processes is engaged in marketing, making the definition in question redundant. A similar comment was made regarding the definition of "processor," and the problem was corrected in 2011. The same solution should be applied to the definition of "producer-processor."
Point 7 concerns a clarification matter. CFC appears to have acknowledged the problem because it amended the provision in question in 2011.
However, the licensee must now retain a declaration that is capable of being audited by a third party and that establishes the dry weight and the product categories. The question that must be asked is as follows: what is the difference between a declaration establishing the dry weight of a product and a declaration that is capable of being audited by a third party and that establishes the dry weight of a product?
Point 8 raises an issue that is well known to the committee. It pertains to a regulatory provision that does not distinguish the reasons why a licence may be suspended or revoked.
In 2001, in Report No. 67, the committee recommended that a similar provision in the Fresh Fruit and Vegetable Regulations be disallowed. In the file currently before the committee, counsel recommended that a distinction be made between the reasons for suspending a licence and the reasons for revoking it.
CFC replied that the regulations do not include this distinction because it would be impractical. The organization was of the view that it would be difficult, if not impossible, to provide for a comprehensive solution regarding the criteria on which decisions must be based.
In fact, the committee would never insist that every possible case be set out in the regulations. Rather, the committee is asking for general criteria that make it possible to determine the circumstances in which a licence will be suspended and those in which it will be revoked.
CFC also wrote that the decision is to be made in light of the general principles of administrative law and is subject to judicial review. The fact that an individual may resort to engaging in a court battle to obtain justice has never been a reason for the committee to abandon efforts to seek correction of a situation such as the one created by the discretionary power in question. Committee counsel sees no reason why a different position should be adopted in this file.
Point 9 also pertains to the discretionary powers of CFC. The organization provided the same response as it did regarding the preceding point, and counsel is of the view that the response is no more satisfactory in relation to this point.
Finally, in point 11, it is once again simply a matter of drafting.
In the December 22, 2011 letter, the Farm Products Council of Canada says that it should have a meeting with the producers in January in order to — and I quote: "discuss the issues and go over the next steps." The council was hoping that this meeting would help establish an action plan to address the concerns and set a reasonable time frame.
The council has not written since. We recommend that a letter be sent to the council to find out whether a meeting did take place in January, and if so, what its outcome was. If the meeting has not been held, it would be appropriate to know whether a date has been set.
Senator Braley: I heard you say that processing and marketing are the same?
Mr. Rousseau: Marketing includes processing. If you say you have to transform or to process or market something, you are not —
Senator Braley: You process to market, but processing is entirely different than marketing, which is branding and sales.
Mr. Bernhardt: There is a definition in the proclamation that defines it that way. There is an artificial definition that basically extends what you would normally think would be encompassed by that term.
Senator Braley: It is a meaningless definition, if it is not what the English language says.
Mr. Bernhardt: It deems.
Senator Braley: All right. Let us go on.
I read this thing and got totally confused. Reading Faskin's letter totally confused me. I think they are referring to other jurisdictions or something.
Mr. Bernhardt: Part of the bulk and complication on this file was caused by the fact that we have a number of files with them. Rather than dealing with each one individually, we got an omnibus 20-page legal letter that deals with everything. What we have tried to do here for this morning, at least, is to just deal with the one.
Senator Braley: Reading this for today's meeting confused me. I agree with your recommendation. You should ask when we expect to get some answer with regard to the meeting you had on such-and-such a date to clear these matters up. List the six of them, so that it makes it really clear. That is my recommendation.
The Joint Chair (Senator Runciman): All in agreement with that approach?
The Joint Chair (Ms. Boivin): It is a good one.
Hon. Members: Agreed.
SI/2011-58 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN THE NORTHWEST TERRITORIES (TUKTUT NOGAIT NATIONAL PARK) ORDER
(For text of documents, see Appendix J, p. 7J:1.)
Mr. Rousseau: In this file, the department has recognized that the order was inadequately worded. The English version of section 2 of the order indicates that the phrase is there only for greater certainty. The French version does not mention that.
After looking into the matter, the department suggests, in its December 14, 2011 letter, that it will change the wording of similar orders issued in the future.
As the drafting issue pointed out in the correspondence has no effect on the meaning of section 2, the department suggests that the order before the committee today not be amended.
The department indicates that the problem has been corrected in recently issued orders.
In the past, when drafting issues were pointed out in similar orders, the committee agreed that corrections be made only to future orders, since most of these orders have a rather short lifespan. For instance, the order the committee is studying today applies to a period ending on January 31, 2013.
If the committee is satisfied with the department's suggestion, this file can be closed.
The Joint Chair (Ms. Boivin): That is fine.
Mr. Wilks: It sounds like a great idea to me.
The Joint Chair (Ms. Boivin): Excellent, it is unanimous.
SI/2011-78 — WITHDRAWAL FROM DISPOSAL OF CERTAIN TRACTS OF TERRITORIAL LANDS IN NUNAVUT (EEYOU MARINE REGION) ORDER
(For text of documents, see Appendix K, p. 7K:1.)
The Joint Chair (Ms. Boivin): Same thing?
Mr. Rousseau: Exactly. If the committee is, once again, satisfied with the department's suggestion, the file can simply be closed.
In any case, we will continue studying future orders. That way, we can see whether or not the wording has been changed in those orders.
SOR/93-220 — HISTORIC CANALS REGULATIONS
(For text of documents, see Appendix L, p. 7L:1.)
The Joint Chair (Ms. Boivin): Historic canals?
Mr. Rousseau: The Parks Canada correspondence allows us to see how much progress the agency has made in the preparation of the proposed amendment. In its September 2011 letter, the agency indicated that the drafting of that amendment should be completed within a few months.
Committee counsel should write to the agency to ask where things stand and whether the drafting has been completed. Counsel should also ask when the agency expects the proposed regulations to be adopted.
The Joint Chair (Ms. Boivin): That makes sense to me. Do we have a consensus? Good. We have a consensus. Let us move on.
SOR/2009-17 — INTERNATIONAL BRIDGES AND TUNNELS REGULATIONS
(For text of documents, see Appendix M, p. 7M:1.)
Mr. Rousseau: Once again, in its September 27, 2011 letter, the department said it expected the promised amendments to be adopted in 2011. That has not happened, and committee counsel should write to the department to see where things stand.
The Joint Chair (Ms. Boivin): Are there any comments? Can we move on?
SOR/2009-18 — REGULATIONS AMENDING CERTAIN REGULATIONS ADMINISTERED AND ENFORCED BY THE CANADIAN FOOD INSPECTION AGENCY
(For text of documents, see Appendix N, p. 7N:1.)
Mr. Bernhardt: Amendments have been promised to correct certain inconsistencies between the terminology used in the French version of the act and these regulations, and to address a point of drafting. As of late November, these amendments were still proceeding and were forecast to be prepared in 2012. Hopefully that will prove to be the case. We will continue to monitor the situation and report back on developments.
SOR/95-26 — SPECIAL IMPORT MEASURES REGULATIONS, AMENDMENT
SOR/2000-138 — REGULATIONS AMENDING THE SPECIAL IMPORT MEASURES REGULATIONS
(For text of documents, see Appendix O, p. 7O:1.)
Mr. Rousseau: The commitment to amend the regulations in order to remedy the issues pointed out by the committee dates back to April 2007.
In January 2008, the department expected that the amendments would be published in the summer of 2008. However, the correspondence brought to the committee's attention indicates that the situation has not exactly turned out as planned. One of the reasons for that was the fact that the draft amendment had to be changed in response to comments made by committee counsel.
In May 2010, the department was waiting for the minister's approval to publish the proposed amendment and was expecting it to be published soon after.
In January 2011, the department expected the amendment to be published in the coming weeks. Finally, on October 28, 2011, the department wrote to tell us that it was uncertain as to when the proposed amendment could be published.
The amendment has actually not yet been published. Over three months have gone by since the department's last letter. The department may now be able to say when the proposed amendment will be adopted. If the committee is in agreement, counsel will write to the department about that.
The Joint Chair (Ms. Boivin): That is a good recommendation. Excellent.
SOR/98-2 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS
SOR/99-169 — REGULATIONS AMENDING THE FISH INSPECTION REGULATIONS
(For text of documents, see Appendix P, p. 7P:1.)
Mr. Bernhardt: The Minister of Agriculture previously advised that amendments to the Fish Inspection Act are to be introduced to address the committee's concerns over the lack of authority for a number of aspects of these regulations. As well, there are more routine amendments to the regulations that can be made without first amending the act. The Food Inspection Agency had indicated that the amendments to the act were expected to be introduced in the last Parliament. That did not happen. The agency now reports that they feel the initiative will move forward in the current session.
As for the promised amendments to the regulations, one is included in a package that is expected to be made this year. The others are in another package that is expected to be sent for drafting this year. Frankly, it is difficult to say whether this represents progress. At least there is an agreement to proceed with these amendments without putting them off for three to five years. Assuming things are creeping forward counsel can follow up in the spring to see where matters are at and report back at that time to the committee.
Hon. Members: Agreed.
The Joint Chair (Ms. Boivin): Excellent.
Senator Moore: What did you say you will do? I have looked at the letter from the same woman, same department, and same delay. What is counsel suggesting?
Mr. Bernhardt: They are telling us in the letter that a package has gone to the Department of Justice and is moving ahead; there is a second package that they are hoping to send forward; and they are expecting a bill this session. That was as of last month. At this time, we would normally wait until early spring and make contact to ask for an update to see if things are still on those tracks.
Senator Moore: Do you not write them a letter to say, "Look, we have read all this and, in view of the past delays in moving this file forward, we would expect to hear from you by a certain date or expect action by a certain date"? I do not like to leave things open-ended. I do not know how you can get these people to take it seriously if we just wait. I do not think that is strong enough or serves our committee well.
Mr. Albas: With regard to the concern, this is on the agenda under "Progress?." Yes, there is a question mark next to it, but we have a commitment that the committee is being perfectly valid, and they are moving on two different fronts. One may not be as quickly as we would like, but that is progress. Considering that we are trying to build a stronger relationship with the CFIA, coupled with the fact of how many files we have changed to the political level earlier today, we should proceed with what counsel said, monitor and encourage, and we will get a lot farther to the end of the line.
Senator Moore: How do you suggest that we encourage? Do we send them a note?
Senator Hervieux-Payette: What bothers me is that the department is saying that the bill will be introduced.
I am sure that even the minister cannot guarantee that the bill will be introduced. That is an unwarranted statement that is not at all compatible with the parliamentary reality. Those matters are negotiated between the government and the opposition. The calendar for introducing bills is not set by government officials. They have no way of knowing that, and the bill may be introduced in 2013.
I am sorry, Mr. Albas, but I have been sitting on this committee for over 15 years. I have had a chance to see how things work, and I agree with my colleague. First of all, I see no progress being made. Second of all, I think that the French issue is always the least of their worries.
We are not second-class citizens. I think that we also have the right to a clearly worded text, one that is understood by everyone and applies uniformly across all provinces. I think we should be a bit firmer and ask for a date.
The Joint Chair (Ms. Boivin): I do not want to argue with you, but the January 5, 2012 letter seems to be a little bit more positive, so it looks like the department has made some headway. At this stage, I would think that following up on this matter in three months would be reasonable.
However, while they may not have made any progress within that reasonable time frame in terms of what they say they have been doing, these are positive statements nonetheless. If not for the 2012 letter, I would be inclined to agree with you, as their letters were all very similar, except perhaps for the different dates.
Since the department has taken new action, I would give it the benefit of the doubt. However, next time, we will be a bit stricter about this. That is a suggestion.
Senator Hervieux-Payette: Do you think they will read the proceedings of our committee? Not at all. We should set a deadline to let them know that our patience has its limits. If we suggest three months, in three months we will contact them again and have to set another deadline. By then, it will probably be September or October.
Either we take this seriously, or we do not deal with it. You are suggesting a three-month time frame, but I prefer that we set a specific deadline or, at least, a specific month, and tell them that we want a report by the end of May. If we do not set a specific deadline, it will go to September.
Mr. Albas: Counsel has laid out a reasonable time frame; we have received a reply; and we will be monitoring it and conducting this as part of the committee's business. Certainly, I understand the frustration, although I do not have the experience that you have, senator. However, one of our challenges is how best to proceed. What counsel has said is that they have received a reasonable reply. Again, this file is on the agenda under "Progress?," not "Reply Unsatisfactory." By following counsel's suggestion in this case and continuing to follow up, we will address your concern and those of the committee.
The Joint Chair (Ms. Boivin): I think that everyone is saying the same thing. Is there a problem with our counsel simply sending them a letter to thank them for the January 5 letter and to tell them that we will follow up in three months because we expect some progress to have been made in the file by then?
That way, everyone is happy. We congratulate them on their progress and we follow up.
Senator Moore: I am happier.
The Joint Chair (Ms. Boivin): Excellent.
Mr. Morin: I think giving people the benefit of the doubt is the right thing to do, but we should also keep an eye on them.
The Joint Chair (Ms. Boivin): That is what we are doing. We will now move on to point 8, action promised, Regulations Amending the Nuclear Security Regulations.
SOR/2006-191 — REGULATIONS AMENDING THE NUCLEAR SECURITY REGULATIONS
(For text of documents, see Appendix Q, p. 7Q:1.)
SOR/2007-76 — REGULATIONS AMENDING THE FOOD AND DRUG REGULATIONS (1158 — FOOD ADDITIVES)
(For text of documents, see Appendix R, p. 7R:1.)
Mr. Bernhardt: Under "Action Promised," there are two instruments listed. Amendments are promised to address four issues on those files. As always, we will follow up progress on those after the meeting.
In particular, there are promised amendments to the Nuclear Security Regulations to better define the parameters of a discretion to revoke an authorization to enter a protected area and to provide a right to be heard where a person's authorization has been revoked.
SOR/2011-54 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
(For text of documents, see Appendix S, p. 7S:1.)
SOR/2011-126 — REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
(For text of documents, see Appendix T, p. 7T:1.)
SOR/2011-208 — REGULATIONS AMENDING CERTAIN REGULATIONS MADE UNDER THE CUSTOMS ACT
(For text of documents, see Appendix U, p. 7U:1.)
SOR/2011-328 — ORDER AMENDING THE EASTERN TOWNSHIPS WOOD PRODUCERS' LEVIES (INTERPROVINCIAL AND EXPORT TRADE) ORDER
(For text of documents, see Appendix V, p. 7V:1.)
Mr, Bernhardt: Under "Action Taken," there are four instruments listed. Taken together, they make 15 amendments that have been requested by the committee, including the revocation of an ultra vires provision.
SI/2011-76 — ORDER AUTHORIZING THE ISSUE OF NON-CIRCULATION COINS OF THE DENOMINATION OF ONE HUNDRED THOUSAND DOLLARS
SI/2011-81 — ORDER FIXING OCTOBER 3, 2011 AS THE DAY ON WHICH THE ENHANCED NEW VETERANS CHARTER ACT COMES INTO FORCE
SI/2011-82 — ORDER FIXING NOVEMBER 1, 2011 AS THE DAY ON WHICH THE STANDING UP FOR VICTIMS OF WHITE COLLAR CRIME ACT COMES INTO FORCE
SI/2011-83 — BELA REVI TAX REMISSION ORDER
SI/2011-84 — MICHELE MCGHIE TAX REMISSION ORDER
SI/2011-87 — ORDER FIXING OCTOBER 17, 2011 AS THE DAY ON WHICH CERTAIN PROVISIONS OF THAT ACT COME INTO FORCE
SOR/79-64 — UNEMPLOYMENT INSURANCE (COLLECTION OF PREMIUMS) REGULATIONS, AMENDMENT
SOR/2003-5 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS
SOR/2007-200 — REGULATIONS AMENDING THE CANADA HEALTH TRANSFER AND CANADA SOCIAL TRANSFER REGULATIONS
SOR/2008-314 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
SOR/2009-144 — REGULATIONS AMENDING THE CONTRAVENTIONS REGULATIONS
SOR/2010-96 — REGULATIONS AMENDING THE INCOME TAX REGULATIONS
SOR/2010-101 — REGULATIONS AMENDING THE CANADIAN FORCES SUPERANNUATION REGULATIONS AND THE RESERVE FORCE PENSION PLAN REGULATIONS
SOR/2010-131 — ORDER AMENDING THE SHIPPING SAFETY CONTROL ZONES ORDER
SOR/2010-154 — REGULATIONS AMENDING THE REGULATIONS IMPLEMENTING THE UNITED NATIONS RESOLUTIONS ON IRAN
SOR/2011-37 — ORDER AMENDING THE SCHEDULE TO THE FAMILY ORDERS AND AGREEMENTS ENFORCEMENT ASSISTANCE ACT
SOR/2011-45 — REGULATIONS AMENDING THE CANADA GRAIN REGULATIONS
SOR/2011-46 — REGULATIONS AMENDING THE ATLANTIC PILOTAGE TARIFF REGULATIONS, 1996
SOR/2011-52 — SPECIAL ECONOMIC MEASURES (LIBYA) PERMIT AUTHORIZATION ORDER
SOR/2011-102 — ORDER AMENDING THE ORDER DECLARING AN AMNESTY PERIOD (2006)
SOR/2011-121 — BRITISH COLUMBIA HST REGULATIONS
SOR/2011-132 — CCOFTA RULES OF ORIGIN FOR CASUAL GOODS REGULATIONS
SOR/2011-151 — ORDER AMENDING THE BRITISH COLUMBIA VEGETABLE MARKETING LEVIES ORDER
SOR/2011-171 — ORDER AMENDING THE IMPORT CONTROL LIST
SOR/2011-173 — ORDER REPEALING THE SPECIAL ECONOMIC MEASURES (LIBYA) PERMIT AUTHORIZATION ORDER
SOR/2011-174 — ORDER 2011-87-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2011-175 — ORDER 2011-66-04-01 AMENDING THE DOMESTIC SUBSTANCES LIST
SOR/2011-180 — QALIPU MI'KMAQ FIRST NATION BAND ORDER
SOR/2011-181 — ORDER AMENDING THE QALIPU MI'KMAQ FIRST NATION BAND ORDER
SOR/2011-190 — ORDER ADDING TH PAQ'TNKEK BAND TO THE SCHEDULE TO THE MI'KMAQ EDUCATION ACT
SOR/2011-192 — ORDER AMENDING PART 1 OF THE SCHEDULE TO THE ROYAL CANADIAN MINT ACT
SOR/2011-212 — ORDER ADDING TOXIC SUBSTANCES TO SCHEDULE 1 TO THE CANADIAN ENVIRONMENTAL PROTECTION ACT, 1999
SOR/2011-221 — REGULATIONS AMENDING THE CANADIAN TURKEY MARKETING QUOTA REGULATIONS, 1990
SOR/2011-224 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
SOR/2011-231 — ORDER AMENDING THE SCHEDULE TO THE CUSTOMS TARIFF, 2011-1
SOR/2011-233 — ORDER AMENDING SCHEDULE 1 TO THE SPECIES AT RISK ACT
SOR/2011-243 — REGULATIONS AMENDING THE CANADIAN CHICKEN MARKETING QUOTA REGULATIONS
Mr. Bernhardt: Under "Statutory Instruments without Comment" is a list of 37 instruments that have been reviewed by counsel and found to comply with all of the committee's criteria. For the benefit of new members, there is simply a list and no materials are provided. However, we always have copies of those available at the meeting if any member wishes to obtain a copy or has any questions in connection with those.
Senator Moore: Since our last meeting, have you reviewed all of this?
Mr. Bernhardt: There is usually a backlog; and some of these are from 2011.
Senator Moore: It is a good body of work. Well done.
The Joint Chair (Ms. Boivin): Thank you very much, everyone.
The Joint Chair (Senator Runciman): Counsel would like to give us a brief overview of the tour they conducted during the break and the feedback they got from the various ministries and agencies they deal with.
Mr. Bernhardt: I will be brief.
The three departments and agencies concerned were Foreign Affairs and International Trade Canada, Environment Canada, and the Canadian Food Inspection Agency. With regard to Foreign Affairs, the issue was not so much delays in carrying out undertakings but in providing responses initially or by way of follow-up. There was reference made to turnovers of personnel and limited resources, and so on.
Perhaps the most telling comment — the reason why responses are sometimes not forthcoming — was that rather than waste the committee's time or make up excuses where there was nothing to report, they simply did not reply. I suggested that was probably not the optimum approach. If that was the case and they needed more time to provide a reply or there might be something in the offing but it was going to take a little longer, I suggested that an interim response to the committee — at least acknowledging that they had received the correspondence and were preparing something and looking into it — would be appreciated.
In the absence of that, simply an informal phone call to our office saying, "Look, we are working on something. Give us a little more time and we will get a response to the committee." They seemed to think that could be easily done and that the fix would be relatively simple. Time will tell, but I think the message was conveyed and received.
As for Environment Canada, the issue is somewhat different. It was more the inability to comply with time frames, constantly shifting time frames moving backwards that were not being met, and so on. There again, we had reference to a burgeoning regulatory responsibility on the part of Environment Canada, with more and more environmental regulations and so on. I think part of the problem was the approach they had often taken of saving amendments up until they had a broad review of a particular regulation, and then trying to do it that way. They made reference to a miscellaneous package that they did process and proceed with last year. Until it was mentioned, I did not realize it was the first time in a decade that Environment Canada had used that particular mechanism of a miscellaneous package. They seemed to think that was a good experience, and apparently there are a couple more in the works.
Hopefully, by using that process more often, it will speed up their turnaround time for making amendments, and they will move away a bit from this notion of waiting until there is a whole overall review of a particular regulation. There was an admission that they did have difficulty forecasting timelines. Hopefully, the greater use of the miscellaneous process will help in that regard.
With respect to the Food Inspection Agency, as we have seen this morning, some amendments are proceeding. There are still miscellaneous packages in the works. There is a reference to legislation to revise the Fish Inspection Act. On the other hand, there is this modernization initiative and as the committee has seen this morning, there seems to be a desire to lump a lot of things into that process. That will take a number of years. Given the agency's track record of predicting timelines, if they are talking three to five years right now, I think we can assume it will take significantly longer than that. I did not want to speak for the committee, but I suggested that that might not be particularly well received by the members. I think they are probably expecting the response that the committee has decided to give them this morning. Where that goes from there remains to be seen.
The Joint Chair (Senator Runciman): Mr. Albas mentioned personnel changes there.
Mr. Bernhardt: Yes. I did express the view that I thought despite that and that there might be this modernization initiative going on, the committee would still want to see its concerns being brought forward and addressed in the interim. Not all in one fell swoop necessarily, but at least there would be some indication that everything had not just been shunted off to the side.
Mr. Albas: I want to thank counsel again for meeting and being proactive. I think one of the biggest things I have seen in my experience in local government is the need to be proactive and build those relationships. Being able to gauge the people you are working with, to encourage them and to give them information they did not have previously, gives them a better understanding of the role of our committee and the desire to see some changes. At the end of the day it makes us more effective as parliamentarians, to have those. I just want to give my appreciation to counsel for reaching out. That is a good change. I appreciate that the chair is encouraging them to do that.
Hon. Members: Hear, hear.
The Joint Chair (Ms. Boivin): On that great note, the meeting is adjourned.
(The committee adjourned.)